Unpublished Disposition, 914 F.2d 264 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 914 F.2d 264 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Ruben SENTIBANEZ, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Gualberto SENTIBANEZ, Defendant-Appellant.

Nos. 89-50191, 89-50276.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 1990.Decided Sept. 7, 1990.

Before WALLACE, DAVID R. THOMPSON and O'SCANNLAIN, Circuit Judges.


MEMORANDUM* 

We must determine whether the district court appropriately considered drug dealings outside of the counts of conviction in determining appellants' sentences under the Sentencing Guidelines.

* A confidential government informant, who was posing as a potential drug buyer, approached Ruben and Gualberto Sentibanez and a third individual to discuss a proposed purchase of cocaine. The informant told these individuals that he was interested in purchasing ten kilograms of cocaine. The informant agreed to pay $16,000 per kilogram of cocaine.

On August 16, 1988, the informant telephoned Ruben and arranged to meet the Sentibanezes at a restaurant, near the hotel in which the informant had a room. After meeting in the restaurant's parking lot, Ruben and the informant went into the hotel room where the informant showed $96,000 to Ruben. The informant explained to Ruben that he would need to conduct the deal in two installments because he had encountered a problem obtaining enough money for the ten kilograms of cocaine. They agreed that six kilograms of cocaine would be purchased later that day and the remaining four kilograms would be bought the following day.

Gualberto and Ruben left the hotel on a motorcycle and traveled to a nearby house. After leaving Ruben at the house, Gualberto drove a car to 22843 Cantlay Avenue, where he picked up a package. Gualberto then picked up Ruben and drove back to the informant's hotel.

In the hotel parking lot, Ruben told the informant that they had brought a single kilogram of cocaine and that if the informant paid for that kilogram, they would deliver the remaining five kilograms. The informant protested that they had agreed upon the delivery of six kilograms of cocaine. Gualberto explained that the suppliers were a bit nervous and did not want to "front" all six kilograms and that once the informant paid for the single kilogram, the remaining five kilograms would be delivered in fifteen minutes.

Gualberto opened the trunk of the car to reveal the package of cocaine. The informant and Ruben, who was carrying the package, then went into the hotel to obtain the money. Inside the hotel, FBI agents arrested Ruben. Meanwhile, other agents arrested Gualberto in the parking lot. The search of the car revealed a loaded gun underneath the driver's seat. The package contained approximately one kilogram of cocaine.

Ruben and Gualberto were indicted on August 30, 1988 for conspiracy and for possession of cocaine with the intent to distribute. Gualberto was also charged with knowingly carrying a firearm in relation to a drug trafficking crime. On January 3, 1989, Ruben and Gualberto pleaded guilty to possession with intent to distribute one kilogram of cocaine. The remaining charges against them were dropped.

The presentence report recommended that Ruben's and Gualberto's base offense levels be based upon the ten kilograms of cocaine. Gualberto argued in his position papers that the sentence should be determined based upon the single kilogram of cocaine actually delivered, and he requested an evidentiary hearing in the event that the court intended to impose a sentence based on more than one kilogram of cocaine.

The district court ordered the government to submit sworn affidavits of persons having knowledge of Gualberto's involvement in a negotiation for a multiple-kilogram quantity of cocaine.

After concluding that an evidentiary hearing was not necessary, the district court sentenced Gualberto and Ruben each to prison for a ninety-seven-month term followed by a four-year term of supervised release. The sentences were based upon the Sentibanezes' involvement in a six kilogram cocaine transaction. Specifically, the district court determined that Gualberto's and Ruben's base offense levels were 32 and that their adjusted offense level was 30, after a two-point reduction for acceptance of responsibility. See United States Sentencing Commission, Guidelines Manual Sec. 2D1.1 (six kilograms of cocaine), Sec. 3E1.1 (acceptance of responsibility) (1989) [hereinafter "Guidelines Manual"]. Because Gualberto and Ruben had no prior convictions, their criminal history was I. Gualberto and Ruben timely appeal from their sentences.

II

Gualberto and Ruben contend that the district court erred in applying the "relevant conduct" provision of the Sentencing Guidelines. They reason that since they pleaded guilty to possession with the intent to distribute only one kilogram of cocaine, the district court should have applied the base offense level of 26 (the level applicable to conduct involving one kilogram of cocaine) rather than the base offense level of 32 (the level applicable to conduct involving six kilograms of cocaine).1  We disagree.

We recently held that the relevant conduct section allows the sentencing court to consider the quantities of drugs not specified in the count of convictions in determining the base offense level if the drugs are part of a common scheme. See United States v. Turner, 898 F.2d 705, 710-11 (9th Cir.), cert. denied, 110 S. Ct. 2574 (1990). Our holding in Turner was well-supported by the Guidelines' commentary.

Application Note 12 to section 2D1.1 (which is the relevant drug-related offenses section) provides:

Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level. See Sec. 1B1.3(a) (2) (Relevant Conduct). If the amount seized does not reflect the scale of the offense, see Application Note 2 of the Commentary to Sec. 2D1.4. If the offense involved negotiation to traffic in a controlled substance, see Application Note 1 of the Commentary to Sec. 2D1.4.

The cross-referenced relevant conduct section provides in pertinent part:

(a) Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified, (i) the base offense level where the guidelines specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:

* * *

* * *

(2) solely with respect to offenses of a character for which Sec. 3D1.2(d) would require grouping of multiple counts [Sec. 3D1.2 includes Sec. 2D1.1 offenses], all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.

Guidelines Manual Sec. 1B1.3(a) (2) (emphasis added). Moreover, the Background Notes for the relevant conduct section specifically state that "in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction." Id. Sec. 1B1.3, Commentary, Background Notes, at 1.20.

Accordingly, we conclude that the district court appropriately applied the relevant conduct section. Because the six kilograms were a part of the "same course of conduct or common scheme or plan as the offense of conviction [the possession with the intent to distribute one kilogram of cocaine]," the district court properly considered the six kilograms in determining the Sentibanezes' base offense levels. See id. Sec. 1B1.3(a) (2).

III

* Gualberto argues that the district court abused its discretion in denying his request for an evidentiary hearing. Specifically, he contends that an evidentiary hearing was necessary to determine whether he was involved in a scheme to sell the five additional kilograms of cocaine. See Fed. R. Crim. P. 32; Guidelines Manual Sec. 6A1.3(a) ("When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor.").

A defendant has a right not to be sentenced based upon false or unreliable information. See Farrow v. United States, 580 F.2d 1339, 1359 (9th Cir. 1978). A district court, however, does not abuse its discretion by sentencing a defendant without an evidentiary hearing if the court provides the defendant an opportunity to rebut allegations in the presentence report. United States v. Baker, 894 F.2d 1083, 1084-85 (9th Cir. 1990).

Here, the district court provided Gualberto the opportunity to present arguments at the sentencing hearing and also received Gualberto's memorandum regarding the sentencing factors. Because Gualberto had ample opportunity to rebut the allegations in the presentence report, the district court did not abuse its discretion in denying Gualberto's request for an evidentiary hearing. See id. at 1085 ("Under such circumstances, where a formal evidentiary hearing would have served no purpose, the court's denial of [defendant's] motion for such a hearing could not have constituted an abuse of discretion.").

B

Gualberto and Ruben next contend that there is no factual basis for the district court's determination that the Sentibanezes were involved in a transaction for six kilograms of cocaine. They allege that the district court's conclusion that Gualberto and Ruben intended to provide the additional five kilograms of cocaine is based only on speculation.

When a defendant alleges any factual inaccuracy in the presentence report, Federal Rule of Criminal Procedure 32 requires that the district court either make a finding as to the allegation or determine that no such finding is necessary because the controverted matter will not be taken into account in the sentencing. See Fed. R. Crim. P. 32(c) (3) (D). Strict compliance with Rule 32 is required when a defendant challenges the factual accuracy of a presentence report. United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc).

The district court in the instant case satisfied Rule 32's requirement by making the specific finding that six kilograms were the appropriate quantity of drugs for sentencing purposes. See Reporter's Transcript of Proceedings, May 1, 1989, at 16 (sentencing hearing of Gualberto Sentibanez); Reporter's Transcript of Proceedings, Mar. 20, 1989, at 16 (sentencing hearing of Ruben Sentibanez).

Moreover, the district court's determination that six kilograms were the relevant quantity of drugs for sentencing purposes is not clearly erroneous. It is undisputed that the Sentibanezes explained to the confidential informant that once he purchased the single kilogram of cocaine, the five additional kilograms of cocaine would be delivered in fifteen minutes. Furthermore, the confidential informant had brought $96,000, the agreed upon sum for the six kilograms of cocaine.

IV

Ruben and Gualberto finally argue that the Guidelines, on their face, violate the due process component of the fifth amendment. We have already squarely rejected this argument, however. See United States v. Brady, 895 F.2d 538, 540 (9th Cir. 1990).

Ruben and Gualberto also claim that the Guidelines as applied to them violated due process. The conclusion that the Guidelines do not facially violate due process "does not foreclose due-process challenges to the Guidelines as applied in individual cases." Id. at 543 (quotation omitted).

We have recently held that sentencing courts are constitutionally required to make factual determinations underlying the application of the Guidelines by at least a preponderance of the evidence in order to satisfy due process. See United States v. Wilson, 900 F.2d 1350, 1353-55 (9th Cir. 1990). Although the district court here did not articulate the standard of proof for its finding that Gualberto and Ruben were involved in a scheme to sell six kilograms of cocaine, after reviewing the record, we are persuaded that the court used at least a preponderance standard in reaching its conclusion.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

In support of his argument, Gualberto relies primarily upon United States v. Restrepo, 883 F.2d 781 (9th Cir. 1989). We have withdrawn that opinion. See United States v. Restrepo, 896 F.2d 1228 (9th Cir. 1990). The amended opinion does not support Gualberto's argument. See United States v. Restrepo, 903 F.2d 648 (9th Cir. 1990)

Ruben relies upon two district court cases that suggest a narrow application of the relevant conduct section. These cases are of dubious precedential value, however. United States v. Smith, 686 F. Supp. 1246 (W.D. Tenn. 1988), has subsequently been reversed and remanded by the Sixth Circuit, see United States v. Smith, 887 F.2d 104 (6th Cir. 1989), and United States v. Moreno, 710 F. Supp. 1136 (E.D. Mich. 1989), has been remanded for resentencing after the Sixth Circuit determined that the district court misapplied the Guidelines, see United States v. Moreno, 899 F.2d 465 (6th Cir. 1990).